Opinions Have Layers (cont.): What’s at Stake in the NC Voting Rights Case


[Image courtesy of the (awesome!) all-flags-world.com]

Two years ago, I borrowed an idea from Shrek in writing about a Supreme Court case involving proof-of-citizenship on the federal registration form: specifically, the notion that cases have layers. That idea came back to me recently as I read about the ongoing Voting Rights Act challenge in North Carolina. That case, like Shrek the ogre and his beloved onions, also has layers – each more fascinating than the last:

OUTER LAYER (SHORT-TERM): On its face, the case involves whether or not a series of legislative changes to election law made by the North Carolina legislature in 2013 will be allowed to stand. At stake is the fate of Election Day registration, an additional week of early voting, the ability to count out-of-precinct provisional ballots and several other changes made by the law. [NOTE that voter ID is not one of those changes after a last-minute change in the legislature on the eve of trial.] The outcome of the case will help decide what the rules are for North Carolinians casting their ballots in next year’s hotly contested Presidential election – which will likely see the state reprise its role as battleground;

INNER LAYER (MEDIUM-TERM): In considering the case, plaintiffs are proceeding on two different but related theories under the Voting Rights Act – 1) that the challenged laws have the effect of discriminating against minority voters and 2) that the changes were enacted with the intent to discriminate. On the first question, one key issue at trial will be what should serve as the baseline for determining discriminatory effect: North Carolina law before the change (which was more expansive and thus the plaintiff’s preference) or one that puts the state in a wider context both nationally and over time (the state’s approach). That question has already been litigated somewhat in Ohio regarding early voting, but how it applies in North Carolina could have national significance in 2016 and beyond.

On the second point, plaintiffs are attempting to go beyond a mere showing of discriminatory effect to prove that policymakers knew about the effects on minority voters and enacted them with intent to produce those discriminatory effects. If the evidence supports that charge, it could not only support a decision striking down those changes but also subject the state to preclearance requirements under the Voting Rights Act. Which leads us to the most flavorful layer of all …

INNERMOST (LONG-TERM) LAYER: At its heart, the North Carolina case is the first significant engagement in the battle between the federal government and states about the future of the Voting Rights Act after the Supreme Court’s opinion in Shelby County v. Holder. North Carolina’s changes were enacted in a post-Shelby environment, putting them out of reach of the formerly powerful federal preclearance power; this case seeks both to find another way to use the Voting Rights Act to strike down those changes AND reanimate the preclearance power through a finding of discriminatory intent.

In short, there is a lot going on here – far more than just the (already important) fights about the rules in North Carolina for 2016. For that reason, don’t be surprised if the case, regardless of outcome, finds its way up the appellate chain to the Supreme Court – where judges will be asked to decide both the future of North Carolina law and the Voting Rights Act – one layer at a time.

Stay tuned. I hope you like onions.

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